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Burden of proof in cases of dismissal for gross misconduct

In a case regarding any kind of dismissal for misconduct, the employer has to prove the absence of facts which would have justified or excused the employee’s behaviour. This was ruled on 27 January 2015 by the State Labour Court Mecklenburg-Vorpommern (Landesarbeitsgericht Mecklenburg-Vorpommern; docket number: 2 Sa 170/14).

The plaintiff had been dismissed for good cause as the employer caught him in the act of stealing fuel oil from the employer’s premises. The plaintiff pleaded that it was only old and unusable fuel oil, whereas the employer stated he also attempted to steal usable oil.

The Court decided that the employer may first only plead the facts of the misconduct. However, if the employee claims relevant reasons for justification or excuse in detail, it is not sufficient for the employer simply to object to these reasons. He then has to submit evidence that the reasons for justification or excuse do not apply. In the decided case, the employer did not provide any proof that the plaintiff did not try to steal only unusable but also still usable oil. Therefore, the notice of termination was declared invalid, even if the fact of the potential theft of the oil is suitable to justify a dismissal for gross misconduct.